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Manoharan vs G. Dasamma on 6 September, 2007

Kerala High Court
Manoharan vs G. Dasamma on 6 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 768 of 2007()


1. MANOHARAN, S/O. VELUKUTTY, AGED 43,
                      ...  Petitioner
2. SREEJA, D/O. NAGAMMA, AGED 34,

                        Vs



1. G. DASAMMA, D/O. GRACY, AGED 72 YEARS,
                       ...       Respondent

2. NIRMALA,D/O. GRACY, AGED 70

3. BABU,S/O. KOCHAPPI, AGED 58

4. G. KAMALAM DO/. GRACY, AGED 56

5. G. RAJAMMA, D/O. GRACY, AGED 54,

6. VASANTHA, AGED 32, VIJI NIVAS,

7. NADESAN,S/O. VELUKUTTY, AGED 47 YEARS,

8. SABU, S/O. VELUKUTTY,AGED 40

                For Petitioner  :SRI.R.GOPAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :06/09/2007

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
             R.S.A. NO.768     OF 2007
            ===========================

     Dated this the 6th day of September, 2007

                     JUDGMENT

Defendants 2 and 4 in O.S.185/2004 on the file

of Munsiff Court, Neyyattinkara are

appellants.Respondents 1 to 6 are plaintiffs and

other respondents are other defendants.

Respondents instituted the suit seeking a decree

for partition contending that plaint schedule

property originally belonged to father ofplaintiffs

Daveed Kochappi father of respondents/plaintiffs

and he filed a petition for purchase of kudikidappu

before the Land Tribunal, Vellarada and during the

pendency of proceedings, Daveed Kochappi died and

thereafter Gracy mother of plaintiffs got herself

impleaded and later the case was compromised and a

purchase certificate was obtained in the name of

Gracy and appellants and respondents 7 and 8 who

are defendants 1 to 4 are the legal heirs of

deceased Ponnamma, sister of respondents 1 to 5

R.S.A.768/2007 2

and deceased third plaintiff and Gracy died in

1991 and respondents 1 to 7 are entitled to 6 out

of 8 shares in the plaint schedule property and

plaintiffs and defendants are in joint possession

of the property and therefore they are entitled to

get their shares separated. Appellants in their

written statement contended that Daveed Kochappi

had no right in the plaint schedule property and

only after marrying Gracy, Kochappi started living

in the property and he had no kudikidappu right

over the property and Gracy alone had kudikidappu

right and in O.A.552/1970 purchase certificate was

issued in the name of Gracy and on the strength of

the purchase certificate Gracy is the absolute

owner of the property and she transferred the

property in favour of first appellant who is the

second defendant, as per sale deed No.258/92 for

valuable consideration and he is a bona fide

purchaser and has effected mutation and has been

paying tax and therefore respondents 1 to 6 are not

entitled to claim any share in the plaint schedule

R.S.A.768/2007 3

property and suit is only to be dismissed. It was

also contended that 3rd respondent/4th plaintiff had

filed an application for kudikidappu right as

O.A.15/2004 and that application was dismissed and

as Gracy sold her right during her life time she

had no right over the property which would

devolve after her death and therefore the suit is

only to be dismissed.

2. Learned Munsiff on evidence of PW1, DW1 and

DW2, Exts. A1 to A3, B1 to B9 granted a preliminary

decree holding that Kochappi was the original

kudikidappukaran and he filed O.A.552/1970 for

purchase of kudikidappu right and Gracygot herself

impleaded as legal heir of Kochappi and obtained

purchase certificate in that capacity and it shall

enure to the benefit of all the legal heirs of

Kochappi. Relying on the decision of this court in

Moothorakutty v. Chiruthakutty(1995 (1) KLT 251) it

was held that Ext.B1 purchase certificate shall

enure to the benefit of Gracy as well as plaintiffs

and legal heirs of deceased Ponnamma the sister of

R.S.A.768/2007 4

plaintiffs. Learned Munsiff also found that as per

Ext.B2 sale deed executed Gracy, her 1/8 share in

the property was transferred and therefore apart

from the share of Ponnamma, appellants are entitled

to the share of Gracy also and plaintiffs are

entitled to get remaining 6/8 shares. Preliminary

decree was passed. Appellants challenged the

decree and judgment before Sub Court, Neyyattinkara

in A.S.74/2006. Learned Sub Judge on

reappreciation of evidence confirmed the findings

of learned Munsiff and dismissed the appeal. It is

challenged in the second appeal.

3. Learned counsel appearing for appellants

was heard.

4. The argument of learned counsel was that

Kochappi was not a kudikidappukaran and it was

specifically pleaded by appellants that the hut

was constructed by father of Gracy and Land

Tribunal granted Ext.B1 purchase certificate to

Gracy alone and not to the legal heirs of Kochappi

and therefore Gracy was the absolute owner of the

R.S.A.768/2007 5

property by virtue of Ext.B1 and under Ext.B2 sale

deed, that right was purchased by first appellant

and therefore on the death of Gracy, no right over

the property was devolved on her children and the

preliminary decree granted by courts below is

unsustainable. Learned counsel also argued that

even if properties are available for partition, the

share computed by courts below is incorrect, as on

the death of Kochappi, under Indian Succession

Act, 1/3 share would devolve on the widow and

under Ext.B2 first appellant is entitled to that

share apart from the share, due to deceased

Ponnamma. Learned counsel further argued that

Ext.B2 sale deed is not a void sale deed and

Gracy is entitled to transfer her right in the

property and without getting Ext.B2 sale deed

set aside, plaintiffs are not entitled to the

decree sought for.

5. On hearing the learned counsel, I do not

find any substantial questions of law involved in

the appeal.

R.S.A.768/2007 6

6. It is not disputed that the kudikidappu

application pursuant to which Ext.B1 was granted,

was filed by Kochappi. It is only after the death

of Kochappi, Gracy his wife was impleaded as his

legal heir and continued to prosecute the O.A.

Proceedings. Ext.B1 purchase certificate was

granted in that O.A. Though it was granted in the

name of Gracy, courts below on appreciating the

evidence found that kudikidappu right granted in

favour of Gracy under Ext.B1 shall enure to the

benefit of all the legal heirs. The principle is

correct in view of the decision of this court in

Moothorakutty’s case (supra).

7. Though learned counsel argued that

computation of shares is not correct, I cannot

agree with the said submission also. Though

Kochappi was a kudikidappukaran, on his death

that kudikidappu right devolved on all the legal

heirs including the widow and children. Till the

kudikidappu was purchased it cannot be said that

Kochappi was the owner of the plaint schedule

R.S.A.768/2007 7

property. Till the purchase he has only the status

of kudikidappukaran. He was entitled to purchase

the kudikidappu. As it was not purchased during

his life time it was that status which devolved on

his legal heirs. Therefore widow is not entitled

to claim 1/3rd share. Instead she is only entitled

to get share along with the children who are also

entitled to equal share. As found by courts below,

in view of Ext.B1 purchase certificate issued by

the Land Tribunal and under Ext.B2 sale deed that

right was transferred to first appellant, first

appellant is entitled to the share of Gracy.

Along with that share, children of Ponnamma are

entitled to the share due to Ponnamma. Courts

below on the evidence rightly found that appellants

are entitled to only the 1/8 share of Gracy along

with the 1/8 share of deceased Ponnamma and

plaintiffs are entitled to the remaining 6/8 share.

Appeal is dismissed in limine.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

R.S.A.768/2007    8

M.SASIDHARAN NAMBIAR, J.




   ---------------------
    W.P.(C).NO. /06
   ---------------------


       JUDGMENT




    SEPTEMBER,2006

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